City's school bus policy change is about power, not cost-saving

After four months of deceit, double-talk and delay, there was still no straight answer from the Department of Education as to why it had abruptly rescinded its 42-year-old policy of granting variances that permitted some 3,000 Staten Island seventh- and eighth-graders to ride safely to and from school on yellow buses.

It was now September 20, 2010, the first day of a hearing before Supreme Court Justice John Fusco to decide a lawsuit initiated by local parents and politicians seeking to set aside the DOE’s action as arbitrary and capricious.

Matthew Berlin, Executive Director of the DOE’s Office of Pupil Transportation, took the witness stand and, despite his title, denied having played any role in rescinding the variance or even knowing when that action was taken. He also claimed that nobody in his office knew for sure why the variance was originally adopted.

This startling testimony did not, however, constrain him from opining that it was “not a fair use of public funds” to bus Staten Island’s 12- and 13 year-olds “even if it cost a dollar.”

That’s the same bogus argument that got the DOE kicked out of federal court when it was made before U.S. District Court Judge I. Leo Glasser in an obvious ploy to get the case away from Judge Fusco.

Berlin’s attempt to estimate the variance’s cost to the DOE was embarrassing. At one point he placed the figure at $6.2 million; at another, he said it was actually $3.5 million. Both numbers were substantially higher than the $1.6 million cited by the city in documents submitted to the court.

The next day, an e-mail from Stephanie Keating, a chief administrative officer in the DOE’s operations office, was revealed in which she theorized that the city might actually lose money by eliminating the variance. This because of the cost of providing the displaced seventh- and eighth-graders with MetroCards.

Eric Goldstein, the CEO of School Support Services, continued the zaniness by suggesting that the variance didn’t come into being for such obvious reasons as Staten Island’s lack of adequate public transportation or its many streets without sidewalks.

So what was his explanation?

“It was something the local politicians were in favor of.”

This mindlessly stupid hypothesis flies in the face of the fact that the Staten Island of 1968, with half the population of today, was notoriously hard-pressed to secure its fair share of essential city services, much less obtain preferential treatment.

A CONTRADICTION

Goldstein also said that the seventh- and eighth-graders should use public transportation, insisting that those inadequately served by it or whose commute otherwise involved unreasonable safety risks could still ride on yellow buses by applying for individual hazard variances.

However, Kathleen Grimm, Deputy Chancellor for Finance and Administration, had previously and unequivocally nixed that very idea.

“We are not granting these exceptions anymore,” she declared in a May 12 e-mail.

In a 26-page opinion handed down on Dec. 6, Judge Fusco set aside the DOE’s rescission of the variance on the grounds that it was arbitrary and capricious.

“The decision-makers at DOE considered many factors,” he wrote, “but investigated none before making the decision final.”

Thus, he continued, they acted “without concern for the welfare and safety of the affected students.”

Put more bluntly, instead of having the facts, the DOE jeopardized children’s lives without even having a clue.

Rather than acquiesce in Judge Fusco’s opinion as an independent fact-finder, DOE officials once again dispatched their lawyers - cackling, in all probability - to the Appellate Division.

On June 28, the mid-level appeals court reversed Judge Fusco’s order, holding that while the petitioners’ safety concerns were “compelling,” the DOE’s asserted “need to cut the budget” and “desire to achieve greater equity in busing across the city” were “consistent with statutory mandates.”

True, but so what? The entire point of the petitioners’ case was that neither of those goals were rationally settled upon or rationally implemented.

The court further ruled that school districts need not make transportation decisions based on “the relative hazards in the paths of different children.”

So, in other words, the DOE need not be concerned about kids like 13-year-old Tyler Hummler who, while walking home from school last February on a Great Kills street without sidewalks, was struck by a hit-and-run driver.

The court also directed the petitioners to pay the city the costs of the appeal. While such an assessment lies within the court’s discretion, its imposition here was extraordinary given that the petitioners sought only to further the public interest and were represented pro bono.

Although the petitioners can ask the Court of Appeals, the state’s highest court, to hear the case, its policies and procedures make the granting of such an application unlikely.

The moral of this disgusting saga is clear. DOE officials believe that it is, indeed, possible to put a price tag on a child’s life, and that price is whatever it takes to stroke their egos and satiate their lust for dictatorial power.

[Daniel Leddy’s column appears each Tuesday on the Advance Editorial Page. His e-mail address is JudgeLeddy@si.rr.com.]